State v. Bonds

2022 UT 30IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH
Petitioner,
v.
CHRISTOPHER JAMES BONDS,
Respondent.
No. 20191041
Heard September 17, 2021
Filed June 30, 2022
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Keith A. Kelly
No. 161912346
Attorneys:
Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Solic. Gen.,
Tony F. Graf, Salt Lake City, for petitioner
Nathalie S. Skibine, Salt Lake City, for respondent
JUSTICE PETERSEN authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, JUSTICE PEARCE, and JUDGE WILCOX joined.
ASSOCIATE CHIEF JUSTICE LEE filed an opinion concurring in part
and concurring in the judgment.
JUSTICE HIMONAS sat for oral argument in this case but retired on
March 1, 2022. DISTRICT JUDGE JEFFREY C. WILCOX participated as
his replacement.
JUSTICE HAGEN became a member of the Court on May 18, 2022,
after oral argument in this matter, and accordingly did not
participate.
JUSTICE PETERSEN, opinion of the Court:
INTRODUCTION
¶1 After a night out at a bar, Christopher James Bonds shot
STATE v. BONDS
Opinion of the Court
his friend Byron Williams in the back as Williams ran away from
him. Williams died from his injuries. And Bonds was charged
with his murder.
¶2 At trial, Bonds did not dispute that he killed Williams.
But he argued that he did so only to protect his wife and children.
During trial, the State disputed the genuineness of this defense. It
elicited testimony from the police officer who arrested Bonds
shortly after the shooting that Bonds had not said anything about
protecting his family at the time of his arrest—although, the
officer clarified that he had not questioned Bonds. In its closing
argument, the State cast doubt on Bonds‘s defense by referencing
his failure to explain to the arresting officer why he shot
Williams—arguing that it was ―common sense‖ that if you ―shot
someone in the back [and] you have an opportunity to tell your
side of what happened . . . . Well, why didn‘t he say anything?‖
¶3 At the end of trial, the district court instructed the jury on
both self-defense and imperfect self-defense, the latter of which
reduces the crime of murder to manslaughter if the defendant
caused the death of another while incorrectly, but reasonably,
believing that his conduct was legally justified or excused. Bonds
agreed to the jury instructions. Ultimately, Bonds was convicted
of murder and all but one of the related charges against him.
¶4 But the court of appeals vacated Bonds‘s convictions
because it concluded his counsel had been ineffective in two
respects. State v. Bonds, 2019 UT App 156, ¶ 65, 450 P.3d 120. First,
it concluded counsel was deficient in failing to object to the
―introduction and use of evidence about Bonds‘s silence while
being arrested.‖ Id. And second, it determined counsel was
deficient in not objecting to the manslaughter jury instruction,
which listed imperfect self-defense along with the affirmative
elements of manslaughter and instructed the jury that to find
Bonds guilty of manslaughter, it had to find that each element had
been proven beyond a reasonable doubt. Id. ¶¶ 43, 65. The court
concluded that this incorrectly reversed the burden of proof
applicable to imperfect self-defense. Id. And it ultimately
determined that these instances of deficient performance
prejudiced Bonds. Id. ¶ 65.
¶5 On certiorari, we must decide whether the court of
appeals correctly vacated Bonds‘s convictions based on ineffective
assistance of counsel. We agree with the court of appeals that the
manslaughter jury instruction incorrectly shifted the burden of
proof for imperfect self-defense. And we agree that defense
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counsel was ineffective for not objecting to this instruction. The
law is less clear on the Fifth Amendment implications of
commentary by the prosecution on an accused‘s silence after
arrest but before Miranda1 warnings have been given. However,
even if we assume that counsel could have kept out this evidence
and was ineffective for failing to object to it, we conclude that
these errors did not prejudice Bonds.
¶6 Bonds had a gun and Williams was unarmed. And Bonds
shot Williams in the back from ten feet away as Williams ran
away from him. Assuming defense counsel had not made the
errors discussed, it is still not reasonably likely that the jury
would have convicted Bonds of manslaughter rather than murder
based on a theory of imperfect self-defense.
¶7 Accordingly, we reverse the court of appeals‘ decision
and reinstate the convictions that it vacated.2
BACKGROUND3
¶8 Christopher Bonds, his wife Shania Bonds, his friend
Byron Williams, and Williams‘s girlfriend Lena Valdez went to a
bar together one evening. Shania‘s4 mother watched the Bonds
children while the adults were out. The Bondses lived in the
upstairs apartment of a fourplex, and Shania‘s mother lived in the
other upstairs apartment of the same building.
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1 See Miranda v. Arizona, 384 U.S. 486 (1966).
2 Bonds was convicted of murder, felony discharge of a firearm
with serious bodily injury, possession of a firearm by a restricted
person, and two of the three counts of felony discharge of a
firearm. The court of appeals reversed all of Bonds‘s convictions
except for possession of a firearm by a restricted person, and
remanded for a new trial. State v. Bonds, 2019 UT App 156,
¶¶ 18, 65, 450 P.3d 120.
3 ―When reviewing a jury verdict, we examine the evidence
and all reasonable inferences in a light most favorable to the
verdict, reciting the facts accordingly. We present conflicting
evidence only when necessary to understand issues raised on
appeal.‖ State v. Ray, 2020 UT 12, n.2, 469 P.3d 871 (citation
omitted).
4 We refer to Shania Bonds by her first name to avoid
confusion with defendant Bonds, with no disrespect intended.
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¶9 At the bar, Bonds and Shania got in an argument with
another patron. Shortly after 1:00 a.m., the party of four returned
to the apartment complex. Bonds went inside his apartment and
when he came back outside, he was holding a gun. Valdez
overheard Bonds telling Shania that he and Williams were going
to go back and ―shoot up the bar.‖ Valdez urged Williams, who
also went by ―Cheese,‖ to stay behind. They argued, and she told
him that if he went, she was done with him.
¶10 Shania picked up her children from her mother, and the
women went to the Bondses‘ apartment. As Shania was closing
the door behind them, they heard gunshots. Shania slammed and
locked the door and Valdez dropped to the floor. Valdez heard
four gunshots: ―there was one and then . . . 10, 15 seconds later,
there [were] three more.‖
¶11 Soon, Bonds was banging on the apartment door. As
Shania let him in, Bonds ―said that he had shot Cheese.‖ Valdez
ran to find Williams.
¶12 A resident of the apartment complex heard the gunshots
and called 911 at 1:51 a.m. Meanwhile, Bonds left the apartment,
eventually calling a friend for a ride about twenty minutes after
the 911 call. He told the friend that he had killed Williams, but did
not say anything during the six-minute conversation about why
he had done it. The friend refused to pick him up.
¶13 When officers arrived at the apartment complex, they
discovered Williams lying in the parking lot with a gunshot
wound to the chest. Witnesses identified Bonds as the shooter,
and officers on the scene described him over the radio, indicating
that he was likely on foot. An officer spotted Bonds walking down
the sidewalk and called in his location, after which several officers
moved in and took Bonds into custody.
¶14 The officer who handcuffed Bonds observed dried blood
on Bonds‘s shirt, watch, and knuckles. Between being handcuffed
and being put in the police car, Bonds told the officer, ―I don‘t
have guns on me. I don‘t have any guns on me.‖ During the drive
to the police station, the officer did not question or Mirandize
Bonds. And Bonds did not volunteer any information about why
he shot Williams.
¶15 At the West Valley City police station, detectives
interviewed Bonds the next morning. In the interrogation room,
Bonds waived his Miranda rights and agreed to speak with the
detectives. He gave ―inconsistent accounts‖ about the evening. He
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initially denied shooting Williams and told the detectives that the
blood on him was ―not from that, at all‖; instead, it was from ―an
altercation‖ with an individual at the bar earlier. Bonds claimed
he heard the gunshots after he left the apartment complex and
said he ―was never around, at the time, at all.‖
¶16 But eventually, Bonds confessed to shooting Williams. He
gave detectives the following account of what happened. Bonds
and Williams got into a fight outside in the stairway between
Bonds‘s apartment and his mother-in-law‘s apartment, and
Williams ―got aggressive.‖ Williams ―tried to snatch the gun out
of [Bonds‘s] hand,‖ and they dropped the gun and it ―went off
automatically‖ as it hit the ground. Bonds confronted Williams
about grabbing the gun, and Williams responded, ―I should shoot
this whole house, with these kids.‖ Bonds ―snapped . . . and [he]
chased [Williams] and [he] shot three‖ while Williams ―was
running away.‖ Bonds said Williams ―was running . . . through
the back, like goin towards the driveway where people park,‖ and
Williams was ―about like 10 feet away‖ when Bonds shot him.
Bonds said he ―knew [he] could have‖ killed Williams if he had
wanted to, but that wasn‘t what he was trying to do, he was ―just
trying to like . . . you goin too far, Dog.‖ Bonds told detectives that
Williams‘s threat sent him into ―a rage.‖ ―I shot him, sir,‖ Bonds
told the detectives. ―I didn‘t mean to, I was protecting my kids.‖
¶17 Williams arrived at the hospital unresponsive and was
pronounced dead shortly thereafter. Bonds had shot Williams in
the arm and back. The bullet to the back pierced Williams‘s lung
and exited through the left side of his chest.
¶18 The State charged Bonds with murder; felony discharge
of a firearm with serious bodily injury; purchase, transfer,
possession, or use of a firearm by a restricted person; and three
counts of felony discharge of a firearm.
¶19 At trial, defense counsel acknowledged Bonds shot
Williams but argued he acted in defense of his wife and children.
Bonds did not testify at trial. Instead, his counsel attempted to
elicit evidence from the State‘s witnesses in support of Bonds‘s
theory of imperfect self-defense.
¶20 In its case-in-chief, the State asked the arresting officer
whether Bonds said anything at the time of his arrest about
―trying to defend himself that night.‖ The officer responded, ―No,
he did not.‖ On cross-examination, however, the arresting officer
admitted that he had included none of Bonds‘s comments during
transport in his written report, and that he remembered none of
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Opinion of the Court
Bonds‘s exact words. On re-direct examination, the prosecutor
then confirmed with the arresting officer that Bonds‘s post-arrest
statements about not having a gun were unsolicited, and had the
following exchange with the witness:
Q: Did he say anything to you about defending
himself that night?
A: No, not that I can recall.
Q: Did he say anything to you about defending
others—his family, for example, that night?
A: Not that I can recall.
¶21 Later, defense counsel elicited testimony in support of
Bonds‘s defense-of-others claim during his cross-examination of
the case agent who interviewed Bonds at the police station.
Counsel asked:
Q: In fact, you stated in your police report that it
appears that [Bonds] was trying to protect Shania
and his two kids because he didn‘t want anything to
happen to them or have them seeing Cheese beating
up his wife?
A: Yes. That‘s what . . . he told me.
Q: And you put that in your report?
A: Yes.
And a few moments later in the same cross-examination, after
refreshing the officer‘s recollection with his written report,
defense counsel reiterated:
Q: Right. And then you . . . said, ―It was evident that
you were only trying to protect Shania‖?
A: Based on the statements he had told me, yes.
¶22 During closing argument, the State referenced the
evidence it had elicited from the arresting officer:
It‘s important to know that [Bonds‘s] statement[] to
[the arresting officer] was that he was not happy
about being arrested, but he said nothing else about
defending himself and others.
¶23 Defense counsel responded in his closing argument,
saying:
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[T]hey keep on saying that [Bonds] didn‘t say this or
[Bonds] didn‘t say this, so it must be the
opposite. . . . To imply that he has to stand up and
just yell and scream or just say, ―This is self-
defense‖ . . . or ―This is in defense of my kids,‖ or
anything like that . . . . He doesn‘t have to say
anything. . . . It‘s not his burden. . . . [T]he burden
falls . . . on the State. They have to prove it.
¶24 Defense counsel then emphasized Bonds‘s interview with
detectives, where Bonds stated that Williams threatened to ―shoot
this whole house and these kids‖ and then ran ―[r]ight to where
[Shania‘s mother]‘s house is.‖
¶25 On rebuttal, the prosecutor agreed that Bonds ―doesn‘t
have to say anything‖ and . . . ―it‘s not his burden,‖ but argued
that Bonds‘s failure to tell the officer that he had been protecting
his family called into question the sincerity of this defense. The
prosecutor argued:
But common sense, now you shot someone in the
back, you have an opportunity to tell your side of
what happened, your version of what happened.
Common sense would be: Well, why didn‘t he say
anything? Why didn‘t he talk about self-defense,
defense of others?
...
[Y]es, it‘s not his burden and he doesn‘t have to say
anything, but he was given the opportunity to.
Common sense. He was given the opportunity, he
chose not to. Defense of his kids.
¶26 At the end of the trial, the court provided the jury with
instructions on the law, including instructions related to self-
defense and imperfect self-defense. The State and Bonds agreed to
these instructions.
¶27 An instruction on the lesser included offense of
manslaughter stated:
Before you can convict the Defendant, Christopher
Bonds, of the lesser included offense of
Manslaughter in Count 1 of the Information, you
must find from all of the evidence and beyond a
reasonable doubt each and every one of the
following elements of that offense:
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Opinion of the Court
1. Christopher Bonds;
2. Did recklessly cause
3. The death of another
Or
1. Christopher Bonds;
2. Commits murder (See instruction no. 30)
but is found to having acted in accordance with an
imperfect self defense. (See instruction no. 51)
After you carefully consider all the evidence in this
case, if you are convinced that each and every
element has been proven, beyond a reasonable
doubt, then you must find the defendant[] GUILTY.
On the other hand if you are not convinced that each
and every element has been proven, beyond a
reasonable doubt, then you must find the defendant
NOT GUILTY.
¶28 Instruction 51, the imperfect self-defense instruction
referenced in the manslaughter instruction, defined ―imperfect
self-defense‖ and correctly assigned the State the burden of
proving beyond a reasonable doubt that Bonds had not acted in
imperfect defense of others. This instruction stated:
―Imperfect self-defense‖ is a partial defense to only
the charge of murder. It applies when the defendant
caused the death of another while incorrectly, but
reasonably, believing that his conduct was legally
justified or excused. The effect of the defense is to
reduce the crime[] of:
 ―Murder‖ to ―Manslaughter‖[.]
The defendant is not required to prove that the
imperfect self-defense applies. Rather, the State must
prove beyond a reasonable doubt that the defense
does not apply. The State has the burden of proof at
all times. If the State has not carried this burden, the
defendant may only be convicted of Manslaughter.
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¶29 Bonds was convicted of murder and all of the other
charges against him, except for one count of felony discharge of a
firearm.5
¶30 Bonds appealed, arguing—among other things—that his
counsel provided ineffective assistance due to his failure to object
to two things: the manslaughter instruction incorrectly reversing
the applicable burden of proof for imperfect self-defense, and the
State‘s violation of his Fifth Amendment right against self-
incrimination when it offered evidence that he did not talk about
defending his family during his arrest and then used that
evidence in its closing argument. See State v. Bonds,
2019 UT App 156, ¶ 20, 450 P.3d 120.
¶31 The court of appeals agreed with Bonds on both issues.
Id. ¶ 65. It reversed all of Bonds‘s convictions except for
possession of a firearm by a restricted person and remanded for a
new trial. Id.
¶32 We granted the State‘s petition for certiorari. We exercise
jurisdiction under Utah Code section 78A-3-102(3)(a).
STANDARD OF REVIEW
¶33 ―On certiorari, this court reviews the decision of the court
of appeals for correctness, giving no deference to its conclusions
of law.‖ State v. Ray, 2020 UT 12, ¶ 23, 469 P.3d 871 (citation
omitted). ―When we are presented with a claim of ineffective
assistance of counsel, we review a lower court‘s purely factual
findings for clear error, but [we] review the application of the law
to the facts for correctness.‖ Id. (alteration in original) (citation
omitted) (internal quotation marks omitted).
ANALYSIS
¶34 The court of appeals concluded that Bonds‘s counsel was
ineffective for failing to object to the manslaughter jury
instruction and to the State‘s ―introduction and use of evidence
about Bonds‘s silence while being arrested.‖ State v. Bonds,
2019 UT App 16, ¶ 65, 450 P.3d 120. We agree with the court of
appeals that the manslaughter instruction incorrectly reversed the
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5 In response to an unopposed defense motion, the court later
merged the counts for murder and felony discharge of a firearm,
resulting in the dismissal of count 2. See State v. Bonds,
2019 UT App 156, ¶ 18.
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Opinion of the Court
burden of proof applicable to imperfect self-defense and that
defense counsel‘s failure to object to it was deficient. Whether
counsel was deficient for failing to object to the State‘s use of
Bonds‘s post-arrest, pre-Miranda silence is a closer call. However,
even assuming that counsel was also deficient on this basis, we
conclude that Bonds has not met his burden to establish prejudice.
¶35 To prove ineffective assistance of counsel, the defendant
must establish two things: first, that trial counsel performed
deficiently and second, that trial counsel‘s deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668,
687 (1984). We begin by analyzing counsel‘s performance.
I. DEFICIENT PERFORMANCE
¶36 The court of appeals found trial counsel rendered
ineffective assistance in two respects. State v. Bonds,
2019 UT App 156, ¶ 65. We first address the court of appeals‘
conclusion that counsel was ineffective for failing to object to the
manslaughter jury instruction.
A. Jury Instructions
¶37 The court of appeals determined that trial counsel was
deficient for failing to object to the manslaughter instruction.
Bonds, 2019 UT App 156, ¶ 51. We agree.
¶38 As an initial matter, we conclude that the manslaughter
instruction was legally incorrect because it misstated the burden
of proof. Imperfect self-defense is an affirmative defense
―available when the defendant ‗caused the death of another . . .
under a reasonable belief that the circumstances provided a legal
justification or excuse for the conduct although the conduct was
not legally justifiable or excusable under the circumstances.‘‖
Arriaga v. State, 2020 UT 37, ¶ 21, 469 P.3d 914 (alteration in
original) (quoting UTAH CODE § 76-5-203(4)(a)). Unlike ―perfect‖
self-defense, if the jury finds a defendant acted in imperfect self-
defense, the defendant is not acquitted. Instead, the murder
conviction is reduced to a manslaughter conviction. See UTAH
CODE § 76-5-203(4)(c)(i).
¶39 Once enough evidence is presented at trial to put
imperfect self-defense ―at issue,‖ the burden rests on the State to
disprove this affirmative defense beyond a reasonable doubt. See
State v. Bess, 2019 UT 70, ¶ 34, 473 P.3d 157 (discussing the burden
of proof for the affirmative defense of self-defense). But here, the
manslaughter instruction treated imperfect self-defense as an
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element of manslaughter that had to be affirmatively proven
beyond a reasonable doubt. The instruction stated,
Before you can convict the Defendant, Christopher
Bonds, of the lesser included offense of
Manslaughter in Count 1 of the Information, you
must find from all of the evidence and beyond a reasonable
doubt each and every one of the following elements of that
offense . . . . Christopher Bonds . . . commits murder
. . . but is found to having acted in accordance with an
imperfect self defense. (See instruction no. 51)
Supra ¶ 27 (emphases added).
¶40 Thus, the jury was instructed that to convict Bonds of
manslaughter (rather than murder) it had to find beyond a
reasonable doubt that he acted in imperfect self-defense. This is an
incorrect statement of the burden of proof. The State had the
burden to prove beyond a reasonable doubt that Bonds did not act
in imperfect self-defense. See State v. Campos, 2013 UT App 213,
¶ 38, 309 P.3d 1160 (―[O]nce a defendant has produced some
evidence of imperfect self-defense, the prosecution is required to
disprove imperfect self-defense beyond a reasonable doubt‖).
Bonds had no burden of proof. And therefore no party had the
burden to prove beyond a reasonable doubt that Bonds did act in
imperfect self-defense. So the instruction was legally wrong and
tended to shift the burden of proof onto Bonds, the only party
who had an interest in the jury finding that he ―acted in
accordance with an imperfect self-defense.‖
¶41 The State argues, however, that the jury instructions were
correct when taken as a whole because the manslaughter
instruction contained a cross-reference to another instruction that
correctly defined imperfect self-defense and the applicable burden
of proof. We agree, and Bonds does not contest, that the cross-
referenced instruction was legally accurate.6 However, while ―we
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6 As previously noted, the cross-referenced instruction
correctly defined imperfect self-defense, as follows:
―Imperfect self-defense‖ is a partial defense to only
the charge of Murder. It applies when the defendant
caused the death of another while incorrectly, but
reasonably, believing that his conduct was legally
justified or excused. The effect of the defense is to
reduce the crimes of ―Murder‖ to ―Manslaughter‖.
(continued . . .)
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look at the jury instructions in their entirety‖ when determining
whether they contain a legal error, State v. Lambdin, 2017 UT 46,
¶ 41, 424 P.3d 117 (citation omitted) (internal quotation marks
omitted), one correct instruction does not necessarily correct
another erroneous instruction, see id. ¶ 47 (―When an instruction
completely misstates a legal standard, there is little chance that
other instructions, read as a whole, will remedy the juror
confusion that is likely to ensue.‖). See also State v. Garcia,
2016 UT App 59, ¶ 16, 370 P.3d 970, aff’d in part, rev’d in part,
2017 UT 53, 424 P.3d 171 (―[D]ueling instructions—in conflict as to
how the jury should consider the defense—cannot satisfy
[entitlement to a correct instruction].‖).7
¶42 Here, the two instructions are contradictory and create a
confusing internal inconsistency within the instructions as a
whole. The accurate imperfect self-defense instruction did not
clarify a mere ambiguity. Rather, it conflicted with the legally
incorrect manslaughter instruction. Accordingly, we conclude that
The defendant is not required to prove that the
imperfect self-defense applies. Rather, the State must
prove beyond a reasonable doubt that the defense
does not apply. The State has the burden of proof at
all times. If the State has not carried this burden, the
defendant may only be convicted of Manslaughter.
Supra ¶ 28.
7 We cite Lambdin and Garcia in support of our conclusion that
the correct imperfect self-defense instruction did not remedy the
incorrect manslaughter instruction. Determining whether defense
counsel‘s failure to object to the instruction amounted to deficient
performance requires an additional analytical step: analyzing
―whether correcting the error was sufficiently important under
the circumstances that failure to do so was objectively
unreasonable—i.e., a battle that competent counsel would have
fought.‖ State v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871. Accordingly,
we do not disagree with the concurrence that this opinion does
not create a ―bright-line rule requiring an objection to any
misleading instruction.‖ Infra ¶ 64 n.2. Rather, as we will discuss,
infra ¶¶ 43–49, we conclude that counsel was deficient here
because under these particular circumstances, correcting the
instruction was sufficiently important that counsel‘s failure to do
so was objectively unreasonable.
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the manslaughter jury instruction was legally erroneous, and this
error was not remedied by the presence of an accurate imperfect
self-defense instruction.
¶43 However, just because a legal error existed in the jury
instructions does not necessarily mean that defense counsel‘s
failure to object to the error amounted to deficient performance. A
defendant shoulders a heavy burden when attempting to show
defense counsel performed deficiently because there is a ―strong
presumption that trial counsel rendered adequate assistance and
exercised reasonable professional judgment.‖ State v. Eyre,
2021 UT 45, ¶ 22, 500 P.3d 776 (citation omitted). Defendants are
entitled to ―reasonable assistance,‖ State v. Ray, 2020 UT 12, ¶ 34,
469 P.3d 871, and there is a ―wide range of reasonable
professional assistance,‖ Strickland, 466 U.S. at 689.8 As we have
explained,
Defense counsel did not have a Sixth Amendment
obligation to correct every error that might have
occurred at trial, regardless of whether it affected
the defendant. Counsel could pick his battles. We
must view a decision to not object in context and
determine whether correcting the error was
sufficiently important under the circumstances that
failure to do so was objectively unreasonable—i.e., a
battle that competent counsel would have fought.
Ray, 2020 UT 12, ¶ 32.
¶44 Here, it was objectively unreasonable for counsel to agree
to a jury instruction that incorrectly stated the burden of proof
applicable to imperfect self-defense. The evidence left little doubt
that Bonds shot Williams. And in light of the circumstances of the
shooting—where Bonds shot Williams in the back from ten feet
away as Williams ran away from Bonds—an acquittal based on
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8 The State argues that counsel‘s performance is ―objectively
unreasonable only when it can be said that no competent attorney
would have acted likewise.‖ This language comes from
Premo v. Moore, 562 U.S. 115, 124 (2011). But, as we have
explained, ―we do not understand Moore to change the deficiency
standard announced in Strickland.‖ State v. Scott, 2020 UT 13, ¶ 31,
462 P.3d 350. And at oral argument, the State agreed that the
thrust of its point is that there is a wide range of reasonable
professional assistance.
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Opinion of the Court
self-defense was highly unlikely. Imperfect self-defense was
Bonds‘s only defense, and his only hope of avoiding a murder
conviction. And it was unreasonable for defense counsel to accede
to a jury instruction that incorrectly shifted the burden of proof
for that defense onto Bonds. Accordingly, we must disagree with
the concurrence‘s conclusion that counsel‘s decision not to object
to the manslaughter instruction fell within the wide range of
reasonable professional assistance. Infra ¶ 64 n.2. To the contrary,
―correcting the error was sufficiently important under the
circumstances that failure to do so was objectively unreasonable.‖
Ray, 2020 UT 12, ¶ 32. And we agree with the court of appeals that
defense counsel performed deficiently in this regard.
¶45 The State notes that correctly instructing juries on
imperfect self-defense has proven challenging in numerous cases.
See, e.g., Campos, 2013 UT App 213, ¶¶ 37–45 (holding that defense
counsel‘s ―failure to object to [a] verdict form fell below an
objective standard of reasonableness‖ where the verdict form
―require[d] an affirmative defense [of imperfect self-defense] to be
established beyond a reasonable doubt,‖ although a jury
instruction correctly described imperfect self-defense); State v. Lee,
2014 UT App 4, ¶¶ 26–27, 318 P.3d 1164 (concluding that defense
counsel ―performed deficiently in failing to object‖ to a jury
instruction on imperfect self-defense that ―improperly placed the
burden upon [the defendant] to prove his affirmative defense
beyond a reasonable doubt,‖ but holding this did not prejudice
the defendant‘s conviction); Garcia, 2016 UT App 59, ¶¶ 14–16,
(concluding that ―the jury instructions regarding imperfect self-
defense and attempted manslaughter were in direct conflict,‖ and
though two instructions correctly stated the law, that did not
―remedy or cure‖ the other erroneous instructions). And it asks us
to give some guidance in this area. We do so below, but we limit
ourselves to the instructions before us and do not intend to
prescribe the only way that a trial court could properly instruct a
jury on imperfect self-defense.
¶46 The heart of the problem here is that when imperfect self-
defense is listed as an affirmative element of the reduced offense
of manslaughter, the instruction incorrectly reverses the burden of
proof. See supra ¶ 27. See also, e.g., Lee, 2014 UT App 4, ¶ 27
(explaining that when ―the jury was instructed . . . to find that all
of the listed elements were proven beyond a reasonable doubt,
including that Lee acted under a reasonable belief that his actions
were legally justifiable,‖ the ―instruction improperly placed the
burden upon Lee to prove his affirmative defense beyond a
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reasonable doubt‖); Garcia, 2016 UT App 59, ¶ 14 (noting that the
imperfect self-defense instruction correctly stated the burden but
an additional manslaughter instruction ―incorrectly stated that the
jury should convict Garcia of attempted manslaughter—thus
giving Garcia the benefit of an imperfect self-defense finding—if
the jury concluded that imperfect self-defense did not apply‖).
¶47 The Model Utah Jury Instructions (MUJI) Committee has
noted this very problem:
Instructing the jury on imperfect self-defense has
proved to be problematic because many
practitioners have tried to include the defense as an
element of either or both of the greater crime and the
reduced crime. The inevitable result is that the
elements instruction on the reduced crime misstates
the burden of proof on the defense as it applies to
that reduced crime. See, e.g., State v. Lee,
2014 UT App 4, 318 P.3d 1164.
Model Utah Jury Instructions, CR1450 Practitioner’s Note:
Explanation Concerning Imperfect Self Defense, (last revised 2019),
available at https://www.utcourts.gov/resources/muji/inc_list.as
p?action=showRule&id=42.
¶48 Here, the manslaughter instruction would have been
legally correct if it had stated:
Before you can convict the Defendant, Christopher
Bonds, of the lesser included offense of
Manslaughter in Count 1 of the Information, you
must find from all of the evidence and beyond a
reasonable doubt that:
....
1. Christopher Bonds;
2. Committed murder (See instruction no. 30)
AND
3. The State has failed to prove beyond a reasonable
doubt that Bonds did not act in imperfect self-
defense. (See instruction no. 51)
¶49 Again, we do not hold that this is the only way to
correctly instruct on imperfect self-defense. But when imperfect
self-defense is at issue, the jury instructions as a whole must make
clear that, in order to convict the defendant of murder, the jury
15
STATE v. BONDS
Opinion of the Court
must find that the prosecution proved beyond a reasonable doubt
that the defendant committed murder9 and that the defendant did
not act in imperfect self-defense. And to convict the defendant of
manslaughter, the jury must find that the prosecution proved the
defendant committed murder but did not prove that the defendant
did not act in imperfect self-defense. Neither party has the burden
to prove that the defendant did act in imperfect self-defense, and
jury instructions should steer clear of such an implication.
B. The State’s Use of Bonds’s Post-Arrest, Pre-Miranda Silence
¶50 The court of appeals also determined that trial counsel
acted deficiently when he did not object to 1) the State‘s elicitation
from the arresting officer that Bonds did not mention at the time
of his arrest that the reason he shot Williams was to defend his
family, and 2) the State‘s argument in closing that this showed
Bonds had not genuinely acted in defense of his family because if
he had, it was ―common sense‖ that he would have explained this
to the officer. See Bonds, 2019 UT App 156, ¶¶ 17, 55.
¶51 The United States Supreme Court has not specifically
addressed whether a prosecutor is constitutionally prohibited
from commenting on a defendant‘s silence after arrest but before
law enforcement‘s provision of Miranda warnings.10 We also have
__________________________________________________________
9 We do not include a murder instruction here, as Bonds has
raised no issue regarding the murder instruction given to the jury
at his trial.
10 The Fifth Amendment to the U.S. Constitution guarantees
that no person ―shall be compelled in any criminal case to be a
witness against himself.‖ The Supreme Court has made clear that
it is a violation of the Fifth Amendment for the prosecution to use
against a defendant the defendant‘s decision to not testify at trial,
Griffin v. California, 380 U.S. 609, 613–14 (1965), and a defendant‘s
silence after arrest and after law enforcement has administered
the Miranda warnings, Doyle v. Ohio, 426 U.S. 610, 611 (1976). The
Court has reasoned that once a person has been told they have
―the right to remain silent,‖ it is unconstitutional to then use their
silence against them. Id. at 617–18. But the Supreme Court has also
explained that ―impeachment by use of prearrest silence does not
violate the Fourteenth Amendment.‖ Jenkins v. Anderson,
447 U.S. 231, 240 (1980) (emphasis added). However, the Court
has not conducted this same analysis with respect to the
prosecution‘s use of a defendant‘s silence during the period after
(continued . . .)
16
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not spoken to this issue. Indeed, it is not directly presented here
either, as the issue before us arises within the framework of
ineffective assistance of counsel. So instead of being directly
presented with this issue, we are asked whether defense counsel
was deficient in not objecting when the State elicited evidence of
Bonds‘s post-arrest, pre-Miranda silence and commented on it
during closing arguments.
¶52 The State argues that counsel‘s decision to not object was
not unreasonable, because counsel could have believed the
objection would fail.11 And the State suggests various ways in
arrest but before the Miranda warnings, and where the defendant
does not testify at trial. But see Fletcher v. Weir, 455 U.S. 603, 607
(1982) (―In the absence of the sort of affirmative assurances
embodied in the Miranda warnings, we do not believe that it
violates due process of law for a State to permit cross-examination
as to postarrest silence when a defendant chooses to take the stand.‖
(emphasis added)). The federal courts that have done so are split.
See United States v. Frazier, 408 F.3d 1102, 1110–11 (8th Cir. 2005)
(noting a ―conflict of authority on the question,‖ and holding in
that case that the defendant‘s rights were not violated because
―there was no governmental action at that point inducing his
silence,‖ but also noting that ―[w]e do not decide today whether
compulsion may exist under any other postarrest, pre-Miranda
circumstances‖); United States v. Rivera, 944 F.2d 1563, 1568 (11th
Cir. 1991) (―The government may comment on a defendant‘s
silence when it occurs after arrest, but before Miranda warnings
are given.‖). But see United States v. Hernandez, 948 F.2d 316, 322-24
(7th Cir. 1991) (concluding that a prosecutor‘s commentary on a
defendant‘s post-arrest, pre-Miranda silence violated the
defendant‘s Fifth Amendment privilege); United States v. Velarde-
Gomez, 269 F.3d 1023, 1030 (9th Cir. 2001) (―[T]he government
may not comment on a defendant‘s post-arrest, pre-Miranda
silence in its case-in-chief because such comments would act [] as
an impermissible penalty on the exercise of the . . . right to remain
silent. We conclude[] that regardless [of] whether the Miranda
warnings [are] actually given, comment on the defendant‘s
exercise of his right to remain silent [is] unconstitutional.‖)
(second, third, sixth, and seventh alterations in original) (internal
quotation marks omitted).
11The State cites Brecht v. Abrahamson, 507 U.S. 619 (1993),
which states that ―the Constitution does not prohibit the use for
(continued . . .)
17
STATE v. BONDS
Opinion of the Court
which counsel‘s decision may have been strategic. But ultimately,
we need not resolve whether counsel was deficient in this respect,
because even assuming he was, Bonds has failed to show
prejudice.
II. PREJUDICE
¶53 ―An error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.‖
State v. Scott, 2020 UT 13, ¶ 43, 462 P.3d 350 (quoting Strickland,
466 U.S. at 691). To establish prejudice, ―[t]he defendant must
show that there is a reasonable probability that, but for counsel‘s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.‖ Strickland, 466 U.S. at
694.12
¶54 We ultimately conclude that if these errors had not
occurred—in other words, if the jury instructions had correctly
and consistently stated the burden of proof applicable to
imperfect self-defense and the State had not elicited testimony
about and made reference to Bonds‘s silence at the time of his
arrest—there is no reasonable probability that the outcome of
Bonds‘s trial would have been different. Bonds‘s argument is that,
absent these errors, there is a reasonable probability that the jury
would have convicted him of manslaughter rather than murder
based on a finding that the State had not disproven that he acted
in imperfect defense of his family. But here, the jury was correctly
instructed that imperfect self-defense ―applies when the
impeachment purposes of a defendant's silence prior to arrest, or
after arrest if no Miranda warnings are given.‖ Id. at 628 (emphasis
added). However, Brecht says this in the context of impeachment,
and cites to Fletcher v. Weir, 455 U.S. 603 (1982), which speaks
specifically in terms of impeachment when a defendant testifies at
trial. Id. at 606–07. And Bonds did not testify at his trial.
12 In its analysis, the court of appeals expounded upon the
meaning of a ―reasonable probability‖ as being similar to a
―significant possibility.‖ Bonds, 2019 UT App 156, at ¶ 56. But we
endeavor to hew closely to the words used by the Supreme Court
in Strickland. So we adhere to the ―reasonable probability‖
standard and the Supreme Court‘s analysis and application of this
phrase.
18
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defendant caused the death of another while incorrectly, but
reasonably, believing that his conduct was legally justified or
excused.‖
¶55 And there is no reasonable probability that under the
facts here, a reasonable jury could have found that the State failed
to disprove that Bonds reasonably believed he was legally justified
in shooting Williams. When Bonds fired at Williams, he had a gun
and Williams did not. He shot Williams in the back three times
from about ten feet away. He admitted that Williams was
―running away‖ from him, and that he ―chased‖ Williams.
¶56 The only evidence supporting Bonds‘s theory of the case
was Bonds‘s own statements to detectives that Williams had said
he would ―shoot this whole house and these kids,‖ and that he
shot Williams to protect his family. Bonds also highlights that, as
Williams ran away, he ran in the direction of Bonds‘s mother-in-
law‘s apartment, where Bonds‘s children had been staying. And
we note that the prosecutor did not dispute that Williams ―ran in
[the] direction‖ of Shania‘s mother‘s house. Bonds argues that this
could have caused the jury to conclude that Bonds reasonably
feared Williams was a danger to his children. There is some
dispute about whether Bonds thought his children were still at his
mother-in-law‘s apartment at the time of the shooting, because
Shania had already taken them back to Bonds‘s apartment. But
even assuming this fact in Bonds‘s favor, there is no evidence
tending to show that Bonds could have had a reasonable belief
that Williams was an imminent danger to his children as Williams
ran, unarmed, in their general direction.
¶57 Indeed, there was no evidence at trial that Bonds himself
held such a belief, even subjectively. Bonds described his actions
to detectives not as attempting to stop Williams before Williams
reached his children, but as anger at and punishment of Williams
based on his incendiary comments about Bonds‘s family. In his
interview, Bonds alleged
And he said some crazy shit, whatever, like I‘ll shoot
this whole house and these kids, whatever, some
shit and I‘m like you say what, like you gonna be
fucked up and . . . that‘s when I shot. That shit put
me in a rage, like . . . my kids in this, I don‘t give a
fuck who you is, like my kids . . . . Nobody gonna
hurt my kids. I coulda killed him if I wanted to. But I
wasn‘t doing that. Just showing him you‘re doing
too much, Man. Going too far, dog.
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STATE v. BONDS
Opinion of the Court
¶58 In light of these facts, even if the manslaughter
instruction had been correct and the State made no mention of
Bonds‘s silence at the time of his arrest, we cannot conclude that
there is a reasonable probability that the jury would have
convicted him of manslaughter rather than murder or that the
outcome of the trial would have otherwise been different.
CONCLUSION
¶59 We affirm the court of appeals‘ holding that Bonds‘s trial
counsel performed deficiently in failing to object to a jury
instruction that misallocated the burden of proof as to imperfect
self-defense. But even assuming counsel was also deficient for not
objecting to the State‘s use of Bonds‘s post-arrest, pre-Miranda
silence against Bonds, we conclude that Bonds has not carried his
burden of proving that had these errors not occurred, there was a
reasonable probability that the outcome of the trial would have
been different. Accordingly, Bonds‘s claim of ineffective
assistance of counsel fails. We reverse and reinstate his
convictions.
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and
concurring in the judgment:
¶60 I concur in the court‘s decision to reverse the court of
appeals and reinstate the convictions at issue. And I likewise
concur in the bulk of the majority opinion. I write separately,
however, because I disagree with the court‘s conclusion that trial
counsel was deficient in failing to object to the jury instructions on
imperfect self-defense.1 See supra Part I.A.
¶61 Admittedly, instruction number 35 was not a model of
clarity. If read in isolation, this instruction could have been
interpreted to suggest that Bonds bore a burden of proof on
imperfect self-defense. See supra ¶ 40. In light of the potential for
confusion, I have no doubt that many reasonable defense lawyers
would have objected to this instruction.
__________________________________________________________
1 The majority‘s contrary conclusion is unnecessary to its
judgment in any event given that the court goes on to conclude
that there is no reasonable likelihood that the lack of an objection
affected the jury‘s verdict. See supra Part II. For that reason I
concur in the judgment of the court despite my disagreement with
the analysis in Part I.A. of the opinion.
20
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¶62 But that is not the question presented for our decision.
We do not read jury instructions in isolation. And under Strickland
v. Washington, 466 U.S. 668 (1984), we do not hold trial counsel to
a standard of ―best practice,‖ or require that they object to any
instruction that is potentially confusing or even incorrect. See State
v. Ray, 2020 UT 12, ¶ 32, 469 P.3d 871. The governing standard
―indulge[s] a strong presumption that counsel‘s conduct falls
within the wide range of reasonable professional assistance.‖ Id.
¶ 34 (quoting Strickland, 466 U.S. at 689). And that presumption
leaves room for counsel to ―pick his battles‖ without an obligation
to ―correct every error that might have occurred at trial.‖ Id. ¶ 32.
¶63 I would resolve the question addressed in Part I.A. of the
majority opinion under these standards. I would hold that
Bonds‘s defense counsel was ―pick[ing] his battles‖ in forgoing an
objection to instruction 35. And I would conclude that the
decision to do so fell within the ―wide range of reasonable
professional assistance‖ that Bonds was entitled to under
Strickland.
¶64 Instruction 35 created a potential for confusion—in a
requirement that the jury find ―beyond a reasonable doubt each
and every one of the‖ listed ―elements‖ of the offense of
manslaughter, with a list that included a determination that
Bonds ―acted in accordance with an imperfect self-defense.‖ In
context, that reference could lead to confusion as to who bore the
burden of proof on imperfect self-defense. But instruction 35 did
not expressly assign a burden of proof to the defense. And the
instructions elsewhere eliminated any possible confusion.
Instruction 35 included an express cross-reference to instruction
51. And instruction 51 cured any potential confusion by speaking
expressly—and quite correctly—to the burden of proof on
imperfect self-defense. See supra ¶ 41 (conceding this point).2
__________________________________________________________
2 The majority cites State v. Lambdin, 2017 UT 46, ¶ 47,
424 P.3d 117, and State v. Garcia, 2016 UT App 59,
370 P.3d 970, aff’d in part, rev’d in part, 2017 UT 53, 424 P.3d 171, in
support of its conclusion that instruction 51 did not adequately
―correct‖ the error it finds in instruction 35. Supra ¶ 41. But these
cases are unhelpful to the majority for two reasons. First,
instruction 35 does not contain the kind of errors highlighted in
these cases—a direct ―misstate[ment]‖ of the operative ―legal
standard,‖ as in Lambdin, 2017 UT 46, ¶ 47, or a ―dueling
(continued . . .)
21
STATE v. BONDS
LEE, A.C.J., concurring in part and in the judgment
¶65 The jury instructions at issue were not perfect. But Bonds
had no right to an ideal defense. See Strickland, 466 U.S. at 689. He
had a right to a defense that fell within the ―wide range of
reasonable professional assistance.‖ Id. A lawyer acting within
that wide range could reasonably decide to forgo an objection to
the potential confusion in instruction 35 in light of the explicit
clarification provided in instruction 51.
instruction[]‖ that openly ―conflict[s]‖ with another, as in Garcia,
2016 UT App 59, ¶ 16. Instruction 35, on its own, is confusing; but
it doesn‘t directly misstate the law, or expressly assign the burden
of proof on imperfect self-defense to Bonds. And that
distinguishes this case from those cited by the majority.
The cited cases are also distinguishable in a second way:
Neither of them is rooted in a governing standard for a claim for
ineffective assistance. The Lambdin case arose in the context of a
preserved objection to a jury instruction. See 2017 UT 46, ¶ 10. So
the Lambdin analysis is unhelpful to our resolution of a case
arising under a claim for ineffective assistance. The cited Garcia
opinion does arise in the context of a claim for ineffective
assistance. See 2017 UT 53, ¶ 48. But the majority is relying on an
opinion of the Utah Court of Appeals, whose analysis of the claim
for ineffective assistance was reversed by this court on certiorari.
The majority notes that the cited language in Garcia is from a
portion of the court of appeals‘ opinion dealing separately with
the question whether a jury instruction was accurate—as an
antecedent to the court‘s analysis of a claim for ineffective
assistance of counsel. See supra ¶ 41 n.5. And it emphasizes that its
own approach similarly bifurcates the threshold question of
whether the instructions were in error from the ultimate question
of whether a decision to forgo an objection fell short of the
standard of minimal competence guaranteed to Bonds. Id.
I take the point as far as it goes. But without the support of the
cited authority, the majority is left with a narrow, fact-intensive
basis for its holding. The court is not establishing a bright-line rule
requiring an objection to any misleading instruction. It is simply
concluding that it believes that ―correcting‖ the error at issue here
―was sufficiently important under the circumstances that failure
to do so was objectively unreasonable.‖ Supra ¶ 44 (citation
omitted). We disagree on that ultimate point. But our point of
disagreement is narrow and fact-intensive.
22
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¶66 I respectfully concur in the court‘s judgment on that
basis.
23